The Ohio & Western Mortgage and Trust Company v. Carter

• Decision Date: 20 November 1899
• Docket Number: 319
• Court: Kansas Court of Appeals
• Parties: THE OHIO & WESTERN MORTGAGE AND TRUST COMPANY v. ANNA CARTER et al

58 P. 1040

9 Kan.App. 621

THE OHIO & WESTERN MORTGAGE AND TRUST COMPANY v. ANNA CARTER et al

No. 319

Court of Appeals of Kansas

November 20, 1899

Decided November, 1899.

Error from Sedgwick district court; C. REED, judge.

Judgment of district court reversed.

SYLLABUS

1. FRAUD -- Pleading. The petition complained of set forth, and held, that the demurrer thereto should have been sustained.

2. -- Judgment -- Pleading. "When 'fraud practiced by the successful party' is alleged, the facts showing such fraud must be stated or set forth in a plain and concise manner, as in other cases. Mere 'knowledge' of certain facts is not sufficient. The fraudulent act and proceedings of such party designed and practiced for the purpose of securing an unfair or unjust judgment must be clearly shown." (Hill v. Williams, 6 Kan. 17.)

3. -- Definition. The word "fraud," in the fourth subdivision of section 601 of chapter 95, General Statutes of 1897 (Gen. Stat. 1899, § 4862), "is used in its common, direct sense; it means 'fraud in fact,' not 'fraud in law'; it embraces only intentional wrong." (Laithe v. McDonald, 7 Kan. 254.)

4. -- Rendition of Judgment -- Negligence. "A party against whom a judgment has been rendered in his absence, seeking to be relieved therefrom upon the ground of 'fraud practiced by the successful party in obtaining the judgment,' must not only make satisfactory proof of fraud in fact, but should also show that he was himself guilty of no laches in failing to appear at the trial." ( Laithe v. McDonald, 7 Kan. 254.)

5. -- Diligence -- Defense. No defense can be set up against a judgment which might with proper diligence have been interposed in the action in which the judgment was rendered. (Holderman v. Jones, 52 Kan. 743, 34 P. 352.)

J. D. Houston, for plaintiff in error.

J. M. Balderston, for defendants in error.

OPINION

SCHOONOVER, J.:

This action was commenced by defendants in error in the district court of Sedgwick county against the plaintiff in error to set aside a certain judgment. Judgment was rendered for defendants in error, vacating and setting aside the former judgment. Defendant below brings the case here.

The petition is as follows:

"The said plaintiffs complain of said defendant, and for cause of action state:

"That at all the times hereinafter mentioned, defendant was, and is now, a corporation duly organized and existing under and by virtue of the laws of the state of Ohio.

"That some time in the month of June, 1891, the date not appearing by the recorded journal entry, said defendant, The Ohio &amp Western Mortgage and Trust Company, obtained a judgment against these plaintiffs, together with other defendants, in a certain action then pending in the district court of said county and state, entitled 'The Ohio & Western Mortgage and Trust Company, plaintiff, v. Henry E. Corn et al., No. 13188, general number of the action in the district court'; that said judgment was a personal judgment rendered against these plaintiffs for the sum of $ 632.80, and that the same bore interest from some time in the month of June, 1891, at twelve per cent. per annum, a true copy of which said journal entry of judgment is hereto attached showing the indorsements or O. K. of the counsel and the filing of same, marked 'Exhibit A,' and made a part of this petition.

"Said plaintiffs further allege that said defendant has been guilty of fraud in obtaining said personal judgment against these plaintiffs, in this, to wit: That said case was called for trial by plaintiff in said action, defendant in this action, through its attorneys, Sluss & Stanley, and that said journal entry does not show that said Anna Carter, formerly Kaufman, and Eva G. Koher appeared in said case by their attorney, and that said attorney for said Anna Carter and Eva G. Koher did not O. K. said journal entry at said time, as was required by said court at said time, but that on the simple O. K. of the attorneys for plaintiff, the court rendered judgment in said action against these plaintiffs; that said above-named plaintiffs had no notice that said case was called for trial or that judgment was asked against them personally and that plaintiff in said action never presented journal entry of judgment to them or to their attorney, and never notified them of the settlement of said case.

"Said plaintiffs further allege that said defendant was guilty of fraud in obtaining said judgment in this, to wit: That on the face of the pleadings in said action heretofore mentioned, in which said judgment was rendered, they show these plaintiffs were not indebted to this defendant in this action in the sum of $ 632.80, or in any sum whatsoever; that upon the face of the pleadings in said action they show that, if said plaintiffs were indebted to said defendant in this action in any sum whatsoever, they were not indebted in the said sum of $ 632.80, but for a lesser amount; that said plaintiffs in this action deny that they or either of them were indebted to said defendant in any sum whatsoever.

"Said plaintiffs allege that they have a good defense in said action No. 13188, in this, to wit: That they, the above-named plaintiffs, and neither of them, assumed or agreed to pay said notes and mortgage set up in said action No. 13188 and made a part of the petition in said action, and that they never agreed to pay said notes and mortgage or any part thereof.

"That said plaintiffs further allege that when their attorney appeared in said case and filed his said answer he did not inform them of the nature of said case or they would have filed their answer denying that they or either of them had assumed or agreed to pay said mortgage and notes set up in the petition of plaintiff filed in said action No. 13188, and that said J. V. Daugherty did file said answer in said case No. 13188 without their authority or consent or approval, and without any authority of these plaintiffs to file any answer of any kind or nature whatsoever.

"Said plaintiffs admit that they were served with summons in said case, and that they turned said summons over to said J. V Daugherty to examine said papers for them, supposing that they were made parties defendant in said action No. 13188 because they held a second mortgage upon said premises, and that J. V. Daugherty having loaned these plaintiffs' money on some mortgages of these plaintiffs, and these plaintiffs having obtained judgments against some parties through said J. V. Daugherty; that said J. V. Daugherty did not inform them or either of them of the nature of the judgment asked against these plaintiffs, or that a personal judgment was asked for against them in said action No. 13188, or that a personal judgment would be rendered against them in said action; that the first they knew of said judgment or that a personal judgment was asked was on this day, when the deputy sheriff of Sedgwick county, Kansas, appeared at their store and levied upon their goods, wares, and merchandise; that these plaintiffs have a good defense to said action, in this, to wit, that they never did assume or agree to pay said mortgage set up in said petition filed in said case No. 13188, and did not assume or agree to pay any other mortgage in favor of said defendant in this action. And that upon the face of the pleadings in said action No. 13188 they do not show that said defendant in this action was entitled to judgment of any kind against these plaintiffs, for judgment for the sum of $ 632.80, or for any lesser sum than the amount recovered in said action No....